Hua v. Wilkinson

H
    19-493
    Hua v. Wilkinson
                                                                                  BIA
                                                                               Hom, IJ
                                                                          A208 154 299
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
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IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
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         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 18th day of February, two thousand twenty-one.

    PRESENT:
             ROSEMARY S. POOLER,
             RICHARD J. SULLIVAN,
             STEVEN J. MENASHI,
                  Circuit Judges.
    _____________________________________

    CHEN HUA,
                       Petitioner,

                       v.                                        19-493
                                                                 NAC
    ROBERT M. WILKINSON, ACTING
    UNITED STATES ATTORNEY GENERAL,
             Respondent. 1
    _____________________________________

    FOR PETITIONER:                     Gary J. Yerman, New York, NY.

    FOR RESPONDENT:                     [VACANT], Assistant Attorney
                                        General; Anthony P. Nicastro,
                                        Assistant Director, Patricia E.
                                        Bruckner, Trial Attorney, Office

    1Pursuant to Fed. R. App. P. 43(c)(2), Robert M. Wilkinson
    is automatically substituted as Acting Attorney General.
                                 of Immigration Litigation, United
                                 States Department of Justice,
                                 Washington, DC.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

    Petitioner Chen Hua, a native and citizen of the People’s

Republic of China, seeks review of a February 8, 2019 decision

of the BIA affirming a November 20, 2017 decision of an

Immigration Judge (“IJ”) denying his application for asylum,

withholding    of     removal,   and       relief    under   the   Convention

Against Torture (“CAT”).         In re Chen Hua, No. A208 154 299

(B.I.A. Feb. 8, 2019), aff’g No. A208 154 299 (Immig. Ct.

N.Y. City Nov. 20, 2017).        We assume the parties’ familiarity

with the underlying facts and procedural history.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA.                See Xue Hong Yang

v. U.S. Dep’t of Justice, 

426 F.3d 520

, 522 (2d Cir. 2005).

.   “We     review    the   agency’s       factual    findings,    including

adverse credibility findings, under the substantial evidence

standard,     which     requires       that    they     be    supported    by

reasonable, substantial and probative evidence in the record

                                       2
when considered as a whole.” Hong Fei Gao v. Sessions, 

891 F.3d 67

, 76 (2d Cir. 2018) (internal quotation marks omitted);

see 8 U.S.C. § 1252(b)(4). Hua alleged past persecution on

account of his attendance at an unregistered church in China

and a fear of future persecution on that basis and on account

of his continued practice of Christianity in the United

States.    We find no error in the agency’s denial of relief.

Credibility

    “Considering the totality of the circumstances, and all

relevant factors, a trier of fact may base a credibility

determination on . . . the consistency between the applicant’s

. . . written and oral statements . . . , the internal

consistency     of    each    statement,   the   consistency   of   such

statements with other evidence of record . . . , and any

inaccuracies or falsehoods in such statements, without regard

to whether an inconsistency, inaccuracy, or falsehood goes to

the heart of the applicant’s claim, or any other relevant

factor.”        8    U.S.C.   §   1158(b)(1)(B)(iii).      Substantial

evidence supports the adverse credibility determination given

inconsistencies between Hua’s testimony and his letter in

support    of   his    brother’s    asylum   case   and   between    his

application and testimony.

                                     3
    First, the agency reasonably relied on the inconsistency

between Hua’s testimony and his letter regarding when he

became   aware   that   attending       an    unregistered    church   was

prohibited.      See    8 U.S.C.        § 1158(b)(1)(B)(iii).          Hua

testified that when he first attended an unregistered church,

he did not know that his participation could be met with

resistance from the Chinese police.              However, Hua wrote in

his 2015 letter in support of his brother’s asylum claim that

in December 2013, the Chinese police called and told him and

his grandmother that his brother had been arrested for being

involved in an unregistered church.            The IJ was not required

to credit Hua’s explanation that he was unaware of the details

of his brother’s arrest given that Hua’s letter also stated

that prior to his brother’s arrest, his brother occasionally

told him about the family church, the police told him and his

grandmother   that   his   brother      had    joined   an   unregistered

church, he accompanied his grandmother to pick up his brother

upon his brother’s release, and he accompanied his brother to

the police station to report after his brother’s release.

See Majidi v. Gonzales, 

430 F.3d 77

, 80 (2d Cir. 2005) (“A

petitioner must do more than offer a plausible explanation

for his inconsistent statements to secure relief; he must

                                    4
demonstrate that a reasonable fact-finder would be compelled

to     credit    his      testimony.”        (internal      quotation       marks

omitted)).

       Second, the agency reasonably determined that Hua was

inconsistent      as   to    whether        he   lived   with     his    maternal

grandmother      and   whether     she       knew   about   his     arrest    and

detention.      Hua’s application and initial testimony provided

that he was an only child raised by his paternal grandparents.

He made no mention of a brother or that he had written a

letter    in    support     of   that   brother’s        asylum   application.

However, in his letter, he stated that he and his brother

“relied on [their] maternal grandparents to live.”                      Certified

Administrative Record at 182.                    When confronted with this

inconsistency, he stated that he had stayed with his maternal

grandmother for a month after he was released from detention

in 2015.       Hua also stated that his maternal grandmother did

not know about his alleged persecution.                  However, when asked

how his grandmother could be unaware of his persecution while

taking care of his injuries, he explained, “I only told her

that I was beaten by someone.               I didn’t tell her the detailed

situation. So I was, I did not want her to worry.”

Id. at 147.

    The IJ was not compelled to credit his explanation,

                                        5
because the letter implied that both he and his brother lived

with his maternal grandparents and it omitted any reference

to his paternal grandparents or the fact that he and his

brother did not live together.    See 

Majidi, 430 F.3d at 80

;

Siewe v. Gonzales, 

480 F.3d 160

, 166–68 (2d Cir. 2007)

(deferring to the IJ where there are two permissible views of

the evidence).

    Third, the agency reasonably relied on an inconsistency

between Hua’s testimony and his letter as to who introduced

him to Christianity.   See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu

Xia Lin v. Mukasey, 

534 F.3d 162

, 165–67 (2d Cir. 2008).   Hua

testified that he was first introduced to Christianity and

unregistered churches in 2014 when a friend preached the

gospel to him.   However, in his letter, he stated that his

brother told him about unregistered churches and preached to

him in 2013.     The IJ was not required to accept Hua’s

explanation that he had not paid attention when his brother

discussed Christianity, and that he thought he had to testify

as to when he “officially” learned about Christianity and the

church.   See 

Majidi, 430 F.3d at 80

.

    The agency also reasonably faulted Hua for omitting from

his application that he had almost been arrested in one

                              6
incident    prior     to    his       January     2015      arrest.      Although

“omissions     are     less           probative       of     credibility    than

inconsistencies created by direct contradictions in evidence

and testimony,” the agency reasonably relied on this omission

because Hua’s application explained how church provided him

a sense of comfort and yet failed to mention an initial raid

that occurred very shortly after he began attending church.

Hong Fei 

Gao, 891 F.3d at 78

                   (internal quotation marks

omitted).    Accordingly, this initial incident is a “fact[] .

. . that a credible petitioner would reasonably have been

expected to disclose under the relevant circumstances.”

Id. at 78–79.

    Given      these       inconsistences,            the    agency’s     adverse

credibility     determination            is     supported      by     substantial

evidence.     See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia 

Lin, 534 F.3d at 165

–67.

Future Persecution


    Absent past persecution, an applicant may prevail on an

asylum claim by demonstrating that “he subjectively fears

persecution     and    .    .     .     that    his    fear    is     objectively

reasonable.”     Ramsameachire v. Ashcroft, 

357 F.3d 169

, 178

(2d Cir. 2004).            An applicant may make this showing by
                                          7
establishing either a “reasonable possibility he or she would

be singled out individually for persecution,” or a “pattern

or practice” of persecution of “persons similarly situated.”

8 C.F.R. § 1208.13(b)(2)(iii); see also Y.C. v. Holder, 

741 F.3d 324

, 332 (2d Cir. 2013).        Because the agency found that

Hua was not credible as to past events, his claim of future

persecution was based solely on his practice of Christianity

in the United States.      Where a claim is based on activities

undertaken   after   the   applicant’s    arrival   in   the   United

States, this requires “some showing that authorities in his

country of nationality are (1) aware of his activities or

(2) likely to become aware of his activities.”              Hongsheng

Leng v. Mukasey, 

528 F.3d 135

, 138 (2d Cir. 2008).

    Although   the    agency   credited    Hua’s    claim   that   he

practices Christianity in the United States, it reasonably

concluded that he did not have an objectively reasonable fear

of future persecution on that basis.       Hua did not allege that

authorities were aware of his church attendance in the United

States, nor did the country conditions establish a pattern or

practice of persecution such that he could show his practice

would likely be discovered.     See Jian Xing Huang v. U.S. INS,

421 F.3d 125

, 129 (2d Cir. 2005) (“In the absence of solid

                                 8
support in the record . . . [a] fear is speculative at

best.”).     The IJ took administrative notice of a 2016 State

Department Report that mainly reported incidents involving

pastoral officials and church leaders.         Hua testified that

he never held any religious office,           and he provided no

evidence to establish that Chinese authorities would give the

same attention to his activities as a member of a church.

Moreover, the report reflected significant regional variation

in the treatment of unsanctioned religious groups in China,

and   thus   did   not   establish   a   pattern   or   practice   of

persecution of unregistered church members in Hua’s native

Fujian Province.    See Jian Hui Shao v. Mukasey, 

546 F.3d 138

,

149, 169–70 (2d Cir. 2008) (finding no error in the agency’s

requirement that an applicant demonstrate a well-founded fear

of persecution specific to applicant’s region when country

conditions reflects regional variation in enforcement of

policies).

      In sum, Hua did not meet his burden for asylum because

he did not present credible evidence that he suffered past

harm or objective evidence that he was at risk of being

singled out for future harm or that there is a pattern or

practice of persecution of similarly situated Christians.

                                 9
See 8 U.S.C. § 1158(b)(1)(B)(iii); 8 C.F.R. § 1208.13(b)(1)–

(2).    Because Hua failed to meet his burden for asylum, he

“necessarily”    failed   to   meet   the   higher   standards   for

withholding of removal and CAT relief.       See Lecaj v. Holder,

616 F.3d 111

, 119–20 (2d Cir. 2010).

       For the foregoing reasons, the petition for review is

DENIED.    Hua’s pending motion for a stay of removal is DENIED

as moot.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe,
                               Clerk of Court




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